Twenty-Three Years, No Answer: Why the Privilege Reference Ended as a Non-Decision

Closing a Case Is Not Settling a Question Article

194(3) of the Constitution says that the powers, privileges and immunities of a state legislature shall be "such as may from time to time be defined by the Legislature by law" and, until then, those that existed earlier.

The framers wrote a placeholder, expecting legislatures to fill it with a statute. Seventy-six years later, no legislature has done so and on October 6 the Supreme Court missed its best chance in two decades to say where those undefined privileges end and a citizen's freedom of speech begins.

The text says:

privileges were meant to be temporary borrowings At the founding, Article 194(3) tied state legislative privileges to those of the British House of Commons until a law defined them. The 44th Amendment, 1978, dropped the reference to the House of Commons but kept the same structure, freezing privileges as they stood until codified.

The silence is not accidental. The framers deliberately left codification to the legislatures. What nobody anticipated is that they would never use that power.

The rule as practiced:

Searchlight still governs Because privileges were never written down, courts have had to define them case by case. The governing precedent is the Searchlight case of 1958, Pandit M.S.M. Sharma v. Sri Krishna Sinha, which held that legislative privilege under Article 194(3) prevails over the freedom of speech in Article 19(1)(a).

The Tamil Nadu case was meant to revisit that hierarchy. In November 2003, the Assembly resolved that a piece in The Hindu criticising Chief Minister J Jayalalithaa was a breach of privilege; police tried to arrest the editors and the Supreme Court stayed the arrests.

The matter eventually reached a seven-judge Bench precisely because the conflict between uncodified privilege and press freedom needed a larger Bench to resolve.

Why "infructuous" is a non-decision with consequences On October 6, the Assembly's counsel told the Court that the resolution had been withdrawn on July 30, 2004.

The Bench noted that this had escaped its notice, including when the matter was referred to seven judges and closed the case in minutes, leaving the questions of law open. Procedurally, that is unremarkable: courts do not decide academic disputes. Constitutionally, it means:

• Searchlight remains the operative law, so a legislature's privilege can still be asserted against critical journalism.
• Privileges remain uncodified, so no journalist knows in advance what counts as a breach.
• The next test case will need a fresh arrest warrant or a fresh contempt resolution to reach the Court. The deeper lesson is that two decades of pendency, ended by a withdrawal nobody noticed, shows the cost of leaving the question to litigation at all. Codification under Articles 105 and 194 would let legislatures define their privileges in advance, publicly and subject to the fundamental rights chapter.